Courts are not bound to sentence anyone to death for murder, as High Court judges unanimously agreed

By Frank Phiri - Blantyre Malawi's death row prisoners are breathing more easily after three High Court judges unanimously agreed in a test case that the courts are not bound to sentence anyone to death for murder, as this would be a violation of that person's human rights
"The mandatory death penalty violates an individual's right that protects one from inhuman treatment or punishment and denies them the right to fair trial and have the sentence reviewed by a higher tribunal," said Justice Elton Singini, reading out the joint judgment on Apr. 27
This made article 210 of the penal code "invalid". The article stipulates that the only sentence available to judges for a murder conviction is death by hanging
In the crisply-worded ruling the judges took Malawi a step forward along the road to abolishing the death penalty
But they were careful to note that their decision did not ban capital punishment for the crime of taking a life. "For the removal of doubt, we state that our declaration does not outlaw the death penalty for the offence of murder, but only the mandatory requirement of the death penalty for that office," the judgment said
The ruling was immediately praised by death penalty abolition campaigners
"This decision is a milestone in the international campaign against the death penalty," said Saul Lehrfreund and Parvis Jabbar, two human rights lawyers based in the United Kingdom. "The implications for future murder trails will be the introduction of a complete new set of procedures restricting the imposition of the death penalty in the first instance
"We are delighted that the jurisprudence from Uganda and other regions in the world has now been accepted in Malawi. The decision reflects the notion that law should move progressively towards greater protection of human rights." The High Court ruling involved the case of Francis Kafantayeni and five other death row inmates at Malawi's high-security prison, Zomba. Kafantayeni was sentenced to death following his conviction in 2002 for admitting to the killing of his two-year-old stepson. In mitigation he claimed to have been acting in a state of temporary insanity induced by smoking cannabis
The High Court judges ruled that the six must now be brought back before the courts for a review of their death sentences. These could be confirmed, though the ruling suggests that alternative sentences of fixed-term life imprisonment will be handed down
Noel Chalamanda, a member of the local team of lawyers which represented the six death row inmates, assisted by British lawyers, told IPS that the review would take place towards the end of June. He said depending on the outcome, the same legal team would start a similar action for the remaining prisoners on death row
"As of now there are about 30 persons on death row and we have undertaken to do the exercise for them all," he said. "We are confident that the mandatory death sentence could go altogether and the number on death row could start to be reduced." The number facing execution was substantially reduced when 79 death row inmates had their sentences commuted to life imprisonment by presidential degree in April 2004, according to Amnesty International
The lawyers working for an end to the death penalty in Malawi form part of the Death Penalty Project, an international human rights organisation which has been providing free legal representation since 2003 to those facing capital punishment in the Caribbean and Africa. It is run in association with the British solicitors Simonds and Burton, Keir Starner QC and Joseph Middleton of Doughty Street Chambers
One local lawyer stressed the limitations of the ruling
"The death penalty is not only prescribed for murder but for other offences," Blantyre-based Sheen Msusa told IPS. "The court was only dealing with the mandatory requirement of the death penalty in murder cases. By necessary inference, the judgment has nothing to do with mandatory capital punishment like in case of treason." Apart from murder, the Malawi constitution stipulates that treason, rape, burglary and armed robbery are punishable by death
At present the courts are dealing with a high-profile treason case involving the vice president, Cassim Chilumpha, accused of plotting to overthrow the government of President Bingu wa Mutharika. Chilumpha denies the charge, but remains under restrictive bail conditions
Human rights activists and lawyers argue that the next logical step is for Malawi to take the death penalty out of its constitution
"It's encouraging that for over 10 years, our two presidents never signed for the hanging of death row convicts. Why then should we have it in the law?" asked Undule Mwakasungula, executive director of the Centre for Human Rights and Rehabilitation, a vocal rights watchdog in Malawi
Mwakasungula said it was unfortunate that due to lack of civic education, certain sectors of society had rallied behind the death penalty during Malawi's second Constitutional Review Conference in April
The conference was convened by the Malawi Law Commission, an independent institution established under the constitution to make recommendations on the repeal and amendment of legislation
"The majority of the responses indicated that people are in favour of retaining the death penalty," notes a report by the commission
The High Court ruling offering hope to all Malawi's death row inmates also puts the spotlight on the kind of life facing them in prison if they are re-sentenced to fixed life terms
Amnesty International describes the conditions in Malawi's jails as "life-threatening". In its annual report released in April, the global human rights watchdog noted that there were more than 280 deaths in the prisons last year, an average of 23 inmates a month among the 10,000-strong prison population
"This was a sharp increase from the 14 deaths per month recorded in 2005. Most of the deaths were linked to inadequate diet," Amnesty said
Chalamanda said this was one of the reasons the team of lawyer activists had brought the case of Kafantayeni and others to the High Court
"Most of these inmates are in poor health and desperately need redress. Our focus now is to try and secure less severe sentences for them, depending on the levels of criminal culpability," he said.